used to be thought and cruel and unusual is now different. >> that is rat it is applying the judge's notion of what ought to be. and what .. what ought to be is to be determined by the people, not by a very select segment of the people consisting -- >> rose: by that you mean the legislature? >> the legislature and the people who can modify to the constitution. i mean, it has an amendment provision, prestietionly because they envisioned that some future society may want to change things. but, you know, the key question, with regard to textualism andism meaning versus the opposite view, which is the constitution evolves and the supreme court says how it evolves. the key question is simply this. would the american people have ratified the document if it said the application of this document and what it means shall be whatever the supreme court says it means from age toçó age. nobody would have ratified that document. >> rose: it is a dead document to you? >> i like to say an enduring document. >> rose: but you don't say it is a living document? >> it is not living. it is not living.